Bryson v NSW Land and Housing Corporation

1. The tenant filed a Notice of Appeal on 15 September 2025. It appears that the appeal has been filed in accordance with the Civil and Administrative Tribunal Act 2013 (NSW) and within the requisite time period under Reg. 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. The Appeal Call Over occurred on 10 October 2025. The appeal was set down for hearing, with procedural directions made.
3. The tenant sought a stay of the orders. The application for a stay was dismissed. The tenant has refused to comply with the consent orders made on 29 August 2025.

1. The Notice of Appeal failed to appropriately identify any grounds of appeal. At the hearing, despite being given an opportunity, the tenant also did not adequately identify the grounds of appeal. As best as the Appeal Panel could ascertain, it appears that the appeal was based around the following arguments and submissions:

1. The tenant was not afforded procedural fairness.

2. The Tribunal failed to take into account relevant considerations.

3. There is substantial new evidence that wasn't available at the time of the hearing which demonstrates that much more work is required to adequately address the state of the premises.

4. The decision is so unreasonable that no reasonable decision-maker would have made it.

1. The Notice of Appeal also seeks leave to appeal. The tenant asserts the decision was not fair and equitable, because it was stated that if she moves to a housing apartment she would continue to pay $266.35 rent but if she moves to a hotel in Cronulla she would only pay $1.00 per week, and she could use the rest of the rent money to buy food. The tenant asserts that the Tribunal Member stated if she didn't choose either of the temporary accommodations, the Tribunal Member would decide for the tenant.
2. The tenant asserts the decision was "against the weight of evidence" because it would be fruitless to do repairs to the unit as there is water in the wall due to cracked pipes and the unit is not fit for habitation. The tenant relied on a building report in relation to that matter.
3. The tenant asserts the Tribunal did not give sufficient weight to the evidence of the cracked pipes in the walls where the water is leaking and which have caused televisions and computers to malfunction, and severe mould and high moisture in the unit. The tenant reiterates that the unit is not fit for human habitation.
4. In respect of fresh evidence that was not put before the Tribunal, the tenant has obtained and submitted a Building and Mould Sampling results Report from Jim's Building Inspections dated 2 February 2026. The tenant submits that she can't purchase new clothes, new linen and towels because of the dampness and severe mould. The tenant states that she can't have visitors because the environment is unhealthy and it is affecting her quality of life. The tenant states that there are bubbles in the ceiling.
5. The tenant seeks the orders 1 - 10 made on 29 August 2025 be changed, although it is not adequately expressed what they should be changed to. The tenant merely states that the unit is unfit for habitation and there should be a rent reduction of 70%. The tenant seeks further investigation of what is happening to the foundations of the unit and building. Fundamentally, it appears that the tenant also seeks to be moved permanently to alternative accommodation.

Documents and Submission of the Tenant in the Appeal

1. The tenant filed a 2-page submission with an attached photograph on 17 September 2025. The tenant submitted the Building and Mould Sampling results Report from Jim's Building Inspections that she recently obtained on 26 February 2026.
2. The tenant stated that she did not give consent freely to the orders as she was bullied and coerced.
3. The tenant submitted that the unit is affected by structural damage and water penetration. The tenant states that it has been ongoing for over 12 months. The tenant states that the unit is worse, and is a safety and health concern. The tenant submits that the unit is beyond repair and the repairs will not address the core of the problem. The tenant submits that the unit is unfit to live in. The submitted photograph shows the water damaged carpet near the bathroom. The tenant seeks that the work ordered by the Tribunal not be carried out. The tenant submits that unless the underlying issues are fixed, the same problems are going to arise again.

Documents and Submission of the Landlord in the Appeal

1. The landlord filed a bundle of documents and detailed submissions on 9 December 2025.
2. The landlord submits that the tenant's appeal documents do not particularise or substantiate any error of law or demonstrate any substantial miscarriage of justice. The landlord states that they cannot properly respond to the appeal. However, the landlord has responded as best as they deem appropriate.
3. The landlord submitted that:

(1) There was no procedural unfairness in the matter as demonstrated by the transcript. The tenant was given adequate opportunity throughout the proceedings to raise her concerns. The offers of temporary accommodation were appropriately and properly discussed, and the matter was stood down for the tenant to consider the options. There is no basis for the appeal to be granted on a question of law.

(2) The orders were made by consent. There is no evidence that the tenant was bullied and coerced into consenting to the orders. The orders were not made under duress, or with illegitimate pressure, or as a result of unconscionable dealings between the parties.

(3) The tenant has repeatedly failed to clearly identify the relevant material she says has been ignored. The Tribunal had access to all relevant material, and the tenant had ample opportunity to put forward her case.

(4) The issues that the tenant raises in the appeal concerning the cracked pipes in the walls, severe mould, high moisture content in the unit, and the unit being not fit for habitation are generally all issues that were part of the evidence and considered by the Tribunal at the hearing. This also included the Building Inspection Report filed by the tenant dated 5 September 2025. The transcript shows that consideration was given by the Tribunal to the Report.

(5) The Tribunal did not err in what weight was given to the evidence submitted by both parties in reaching any conclusion, and any decision made was supported by the evidence.

(6) The Orders made are not so unreasonable that no reasonable decision maker would make it.

(7) The tenant has failed to demonstrate that she has suffered a substantial miscarriage of justice.

(8) There is no objective evidence to substantiate the tenant's claims in respect of structural defects. However, the work orders made include that the landlord is to check water ingress from any pipes.

(9) There is no evidence that the premises will not be fit for habitation following completion of the Tribunal orders.

(10) The further Building and Mould Sampling results Report from Jim's Building Inspections dated 2 February 2026 does not change anything and re-iterates the need for the landlord to carry out the works as ordered. There is no new evidence required to establish the basis for a successful appeal on a question of law or grounds other than a question of law.

(11) The Notice of Appeal and appeal grounds are lacking in substance, lack merit and there is no basis for a successful appeal. The appeal should be dismissed.

1. Both parties appeared at the appeal hearing and were given the opportunity to present their case and make submissions.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]- [40]. An error on a question of law is an appeal as of right (if established) and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and stated:

[37] What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

1. It is clear that a failure to provide procedural fairness at the hearing is an error on a question of law and an appeal as of right which does not require leave.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) The decision of the Tribunal under appeal was not fair and equitable; or

(b) The decision of the Tribunal under appeal was against the weight of evidence; or

(c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. However, the Appeal Panel retains discretion as to whether to grant leave under s 80(2) of the NCAT Act or not even if it is established that the appellant may have suffered a substantial miscarriage of justice. The appellant must demonstrate something more than the Tribunal was arguably wrong Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. Ordinarily it is only appropriate to grant leave in matters involving issues of principle or questions of public importance which might have general application, an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision (Collins v Urban at [84]).
3. In respect of a self-represented non-legally trained appellant, grounds of appeal may be considered generally to determine whether a question of law has been raised (Cominos v Di Rico [2016] NSWCATAP 5 at [13]). This, however, is subject to procedural fairness considerations to the other appeal parties to ensure the appeal hearing is conducted fairly (Chalik v Chalik [2025] NSWCA 136 at [66]- [72]; McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [185]- [188]). Further, the Appeal Panel is not required to "second guess the question of law the appellant is endeavouring to raise" (YJC v NSW Trustee and Guardian [2025] NSWCATAP 224 at [22]).

1. In the Notice of Appeal, the tenant identifies that she did not give consent freely to the orders as she was bullied and coerced, she was denied procedural fairness, the Tribunal failed to take into account relevant considerations, and there was no evidence to support a finding of fact.
2. In our view, having regard to the orders of the Tribunal, these raise grounds based on a question of law.
3. We have considered the transcript of the Tribunal proceedings as submitted for consideration of the issues raised by the tenant. It is clear from the transcript that the Member individually identified the documents that the tenant submitted and would be considered as part of the decision. The tenant did not raise any further documents at that time. The Member also explained the process of conducting the hearing, and relevantly to the tenant:

"And then Ms Bryson, you're going to have an opportunity to say what you say the Tribunal should do based on the material I have before me, and then after that, I'll either make a decision straight away, or I'll give you a decision in writing, if I can't make that decision straight away."

1. The transcript establishes that the landlord as the applicant went first in the usual course. The tenant then had her opportunity to present her case, respond and answer questions in the usual manner. The tenant presented the same issues and concerns with the property and the proposed work that she raises in this appeal (transcript of Tribunal hearing 33:23 to 45:49). The tenant raised the water ingress, the suggested repairs being futile, the issues underneath the building, leaky pipes, the electricity problems, the property not being fit for habitation, the impact on the tenant's health, the water impacting the televisions, the wet carpet, and the issues with alternative temporary accommodation.
2. The landlord in responding to the tenant's issues answered to the Tribunal that the proposed repairs would investigate and repair all these areas.
3. The Tribunal clearly identified at the hearing all the issues with the property raised by the tenant and confirmed with the landlord that the proposed works would deal with the underlying issues raised. The Tribunal also concluded that the work is likely to deal with any additional problems if they are identified during the process.
4. The remaining issue was that the tenant would need to be placed in temporary accommodation while the repairs were undertaken. There were two options available as presented by the landlord. The Tribunal adjourned the hearing for a short period to allow the tenant to consider the options. The hearing was resumed and there was further discussion about the matter including the logistics of moving out of the property and the storage of the tenant's goods.
5. The Tribunal Member stated that the matter would be decided either by consent, or by the Tribunal if the parties could not agree. There was then further discussion between the Tribunal Member and the parties about the detail and logistics surrounding the temporary accommodation and other related matters.
6. Ultimately, the Tribunal made the orders by consent. The tenant has not disputed that the orders were made by consent, but rather that she did not give consent freely and was bullied and coerced.
7. The Appeal Panel discussed setting aside consent orders in Pineiro v Sultana [2025] NSWCATAP 132. The decision referred to McDonald v McDonald [2016] NSWCATAP 252 which set out the principles applicable to setting aside a consent order:

56. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]- [45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]- [54]. From those cases, the following principles can be discerned (omitting authorities):

1. At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside;

2. Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like;

3. In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance:

1. with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit;

2. with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence;

1. the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract;

2. a common mistake arises when the mistaken belief is held by both parties;

3. a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake.

5. With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.

6. There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.

1. Having reviewed the transcript of the proceedings, we find that there is no evidence of any bullying, coercion, non-disclosure of a material fact, duress, mistake, undue influence, abuse of confidence or other vitiating factor.
2. We find on the basis of the transcript that the Member was conducting the proceedings at first instance appropriately and in accordance with s38 of the Civil and Administrative Tribunal Act 2013. The tenant was given an opportunity to present all her evidence and state her case which was essentially the same case that she has raised in this appeal. The Tribunal Member interacted appropriately with the parties, including giving the tenant a short adjournment to consider the situation.
3. Ultimately, the Member as part of the hearing stated to the parties that the matter would be decided either by consent, or by the Tribunal if the parties couldn't agree. We are satisfied that this was not bullying or coercion, but the reality of the situation where the formal hearing was being conducted, and it is the routine procedure of a hearing where the matter would be determined one way or the other. We can find no basis to the tenant's claim that she did not give her consent freely.
4. After considering the transcript and the conduct of the hearing as recorded, we can also find no basis on which the Tribunal Member failed to take into account relevant considerations, and there was clear evidence to support a finding of fact that the property was in disrepair in breach of the Residential Tenancies Act 2010. In our view, the transcript establishes that the Tribunal Member did identify all the tenant's documents and gave the tenant an opportunity to be heard. The evidence presented by both parties clearly identifies that the property is in need of extensive and urgent repairs. The work orders reflect the nature and extent of the work including investigation to ensure that there are no further water leaks and ingress.
5. This all establishes that the order was made based on the relevant evidence which clearly established as a matter of fact that the landlord needs to undertake repairs in accordance with their duty under s52 & 63 of the Residential Tenancies Act 2010 for the premises to be fit for habitation for the tenant, and to properly maintain the residential premises in a reasonable state of repair. The order has been made in accordance with the Tribunal's powers contained within s187 of the Residential Tenancies Act 2010.
6. Therefore, there is no error on a question of law established and there is no right of appeal.
7. Are there any grounds to grant leave to appeal the decision where the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice?
8. The decision was made by consent. As set out above, we consider that the order was properly made by consent of the parties based on the disrepair of the property, and therefore, there is no substance to any argument that the decision was not fair and equitable.
9. Both parties acknowledged that the property is in need of extensive and urgent repairs. The Building Reports and the related evidence clearly demonstrated that repairs are required by the landlord in compliance with their legislative duties. The landlord wants to carry out the investigations and undertake all necessary repairs. The tenant identifies that extensive repairs are required. The tenant has provided no other detailed expert scope of works in respect of exactly what she says needs to be undertaken. The tenant did not articulate, in writing or orally, anywhere the repair orders the tenant seeks should be made. But based on both parties' acceptance that extensive repairs are required, there is simply no evidence that even raises any contention that the decision of the Tribunal under appeal was against the weight of evidence.
10. The only new evidence presented by the tenant is the Building and Mould Sampling results Report from Jim's Building Inspections dated 2 February 2026. The tenant conceded that the Tribunal's order was not even shown to the author of the report David Ollerenshaw to seek his opinion as to whether the work orders would be an appropriate order. Mr Ollerenshaw did not attend the appeal hearing. However, the landlord does not oppose consideration of the report.
11. After consideration of the new report, we agree with the landlord that the new report adds little, if anything, to the appeal. The report again identifies the same issues that were of which were taken into account by the Member. We find this new report and evidence is insignificant in the matter.
12. After full consideration of the matters raised and in accordance with the principles contained in Collins v Urban, we can find no substantial miscarriage of justice may have been suffered. The orders were made by consent, the decision in the conduct of the matter was fair and equitable, the orders were made in accordance with the weight of evidence which require the property to be repaired and the tenant to be relocated while the repairs are undertaken and completed, and there is no significant new evidence presented.
13. Accordingly, we conclude that there is nothing that arises in consideration of Cl. 12(1) of Sch. 4 of the NCAT Act that would give rise to leave being granted to appeal from the decision.
14. In conclusion, no grounds for appeal have been established by the tenant.

1. For the above reasons, we order that the application for leave to appeal is refused and that the appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.